Jail term for triple talaq bad in law and can backfire, warn experts

New Delhi, December 6: The three-year jail term for a man who tries to end his marriage through instant triple talaq in the proposed law that seeks to ban the Muslim divorce practice could be counterproductive, legal experts have warned.

The penal action could harm the victims it sets out to protect and be construed as bad in law since a Muslim marriage is essentially a civil contract, they say.

"All you need to say is the marriage continues despite pronouncement of triple talaq. (A penal law) can be struck down by the court," senior lawer Indira Jaising told Hindustan Times on Tuesday.

The government, however, says its intention is to promote gender justice and the draft law's focus is on according equal rights to Muslim women, and not interfere in personal laws.

The law ministry plans to introduce a bill in Parliament in the coming winter session to make instant triple talaq, or talaq-e-biddat, a criminal offence punishable with three years in prison. The winter session begins December 15.

The Supreme Court on August 22 struck down the controversial practice that allowed a Muslim man to end the marriage by uttering the word talaq, or divorce, three times in a go.

The doubts being raised by experts were also discussed by the high-level committee of ministers that cleared the draft bill, a source in the government said.

"The issue of its possible misuse to settle marital discord was also raised. But in the end, the committee's decision to draft a bill (penalising instant triple talaq) was unanimous," the source said.

The committee included union ministers of law and justice, finance, home and external affairs. The junior ministers in the prime minister's office and law and justice were also part of the panel.

India has separate sets of personal laws for each religion pertaining to marriage, divorce, adoption and inheritance. Muslims are allowed to marry and divorce according to the Shariah or Islamic law.

Talaq-e-biddat, however, is outlawed in most Islamic countries.

The proposed law seeks to convert a contractual marriage into a sacrament, said Faizan Mustafa, the vice chancellor of the Hyderabad-based Nalsar law university. "By doing that, you would be applying Hindu personal law to Muslims," he said. The fallout of the new law could be "men abandoning their wives without divorcing them".

Jaising, too, cautioned that by sending a husband to jail, the purpose of declaring the divorce void was defeated. "It amounts to penalising the woman for raising the issue by sending the man to jail."

The All India Muslim Personal Law Board, which had defended the divorce practice in the Supreme Court, is miffed with the government for not including it in the deliberations on drafting the new law.

The law ministry on December 1 sent a draft of the bill to all state governments seeking their views.

"Their purpose is to polarise communities at this time… We have taken this very seriously," board member Kamal Faruqui said.

The board is meeting next month in Hyderabad to decide on its response to the government's move. (Courtesy: HT)